In Review: Wisconsin Civil Justice Council 2013 Judicial Evaluation

In January, the Wisconsin Civil Justice Council issued its biennial Guide to the Supreme Court and Judicial Evaluation. The report sheds light on how the court functions and reveals how each justice voted on the various issues presented before the court that impact Wisconsin’s business climate.

The mission of the Wisconsin Civil Justice Council (WCJC), a broad coalition of organizations with an interest in civil liability issues, is to make Wisconsin a better place to work and live by supporting a fair and equitable civil justice system.

The Wisconsin Supreme Court consists of seven elected justices. Each justice serves ten-year terms, although vacancies can be filled by gubernatorial appointment for a shorter period of time. The Court has jurisdiction over all state courts for appeals, chooses which appeals it decides to hear, and may accept cases which have not been heard in a lower court, known as “original actions.” The Court’s term begins in September and lasts until June, though opinions are often issued well into July.

Decisions rendered by the Court impact every business, health care provider, and insurer operating in the state. The judicial branch can have a dramatic impact on the actions of the executive and legislative branches, as the Court has the authority to interpret or strike down laws passed by the Legislature or rules approved by state agencies.

The WCJC Judicial Evaluation provided a ranking to each justice based on two dozen decisions rendered during the 2010-11 and 2011-12 terms that impact the state’s business climate, listed below:

Chief Justice Shirley Abrahamson 17%
Justice Ann Walsh Bradley 27%
Justice Patrick Crooks 54%
Justice Michael Gableman 70%
Justice David Prosser 71%
Justice Pat Roggensack 74%
Justice Annette Ziegler 70%

The justice with the highest percentage based on the decisions issued by the court over the past two years was Justice Roggensack, who received a 74 percent rating from the Judicial Evaluation.

Among the two dozen decisions reviewed in the Judicial Evaluation, the justices ruled unanimously in favor of a position supporting the business climate four times. In four other decisions, the Court ruled unanimously against a position favorable to the business climate. But most of the highlighted decisions were split votes among the justices.

Justice Roggensack was the lone dissenter in two cases where a majority on the Court ruled contrary to a favorable business climate. In Marquez v. Mercedes-Benz, a jury found that a vehicle owner and his attorney had intentionally thwarted Mercedes-Benz’s attempts to provide a refund according to Wisconsin’s lemon law. The circuit court judge overturned the jury and the Supreme Court affirmed that judge’s decision.

In the other dissent, Aurora Consolidated Health Care v. Labor & Industry Review Commission, Aurora was not allowed the ability to cross-examine a physician appointed by LIRC (a state agency to which employee-related issues are appealed). Aurora wanted to challenge the physician’s opinion but was denied by LIRC. That denial was upheld by the lower courts and the Supreme Court’s majority.

A further example of Justice Roggensack’s jurisprudence was in the dissent she authored in Jandre v. Wisconsin Injured Patients and Families Compensation Fund. The court’s majority ruled that a physician’s duty of informed consent is determined using a “reasonable patient” standard that asks what a reasonable person in the patient’s position would want to know to make a decision about the choices of treatment. Justice Roggensack’s dissent noted that state statute does not allow a physician to be held strictly liable for a missed diagnosis.

These decisions help demonstrate why Justice Roggensack earned the highest score in the evaluation, and illustrate her support of an environment favorable to business.

To read the full report, visit WCJC’s website: http://www.wisciviljusticecouncil.org/judicial-evaluation/

 By Jason Culotta, WMC Director of Tax and Transportation Policy